Bell v. Ladas
1980-08-12
Ontario Board of Inquiry
CHRR Doc. 80-032
Cherie Bell and Ms. Anna Korczak
Complainants
v.
Ernest Ladas and the Flaming Steer Steak House Tavern Inc.,
Respondents
Hearings dates:
October 4—5; December 17—18, 1979; January 16; February 25; and March 4, 1980.
August 12, 1980
Before:
Ontario Board of Inquiry, O.B. Shime
Appearances by:
Mr. T.R. Lederer, Counsel for the Commission
Mr. M.J. McGarry, Counsel for the Respondent
SEXUAL HARASSMENT — definition of sexual harassment — poisoned work environment — sexual advances by employer — DISCRIMINATION — repeated vs. single act of discrimination — LIABILITY — for supervisor — EVIDENCE — admissibility of similar fact evidence — credibility of witness
Summary: The Board of Inquiry dismisses two complaints of sexual harassment filed by Cherie Bell and Anna Korczak against Ernest Ladas, the owner of the Flaming Steer Steak House Inc. in Niagara Falls, Ontario.
The Board of Inquiry finds that sexual harassment of employees by members of management contravenes s. 4 of the Ontario Human Rights Code. An employee is discriminated against because of her sex when an employer exacts some form of sexual compliance in exchange for the maintenance or improvement of financial or other workplace benefits. The evil to be remedied is the utilization of economic power or authority so as to restrict a woman's guaranteed and equal access to the workplace, and all of its benefits, free from extraneous pressures having to do with the mere fact that she is a woman.
The Board of Inquiry finds further that the forms of prohibited conduct that are discriminatory run the gamut from overt gender-based activity, such as coerced intercourse, unsolicited physical contact and persistent propositions, to more subtle conduct, such as gender-based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment. There is no reason why the law, which reaches into the workplace to protect the work environment from physical or chemical pollution or extremes of temperature, ought not to protect employees as well from negative psychological and mental effects where adverse and gender directed conduct emanating from a management hierarchy may reasonably be construed as a condition of employment.
Where an officer has engaged in prohibited conduct, the Board of Inquiry finds that the corporate respondent is liable under the Code. However, the Board of Inquiry declines to uphold the complaints on their merits. Cherie Bell alleged that Ernest Ladas propositioned her when she came to pick up her first pay cheque, told her she "screwed too much," offered her a "slow screw and a fast screw" when she came to the bar to fetch a drink called a Sloe Screw for a customer, and fired her because she did not comply with the harassment. However, because of inconsistencies in her evidence, the Board of Inquiry prefers the testimony of Ernest Ladas and finds his denial of the harassment credible.
The second complainant, Anna Korczak alleged that Mr. Ladas slapped her "rear end" on more than one occasion, made inquiries about her personal life, and invited her out for drinks and to have sex with him. The Board of Inquiry finds that Ms. Korczak did not discharge the burden of proof to show that these events occurred on a balance of probabilities.
The Board of Inquiry declines to treat the testimony of other women who stated that they were sexually harassed by Ernest Ladas as similar fact evidence. Nor does it treat the evidence of Bell as similar fact evidence in the case of Korczak since the conduct complained of is sufficiently different that it does not create a pattern.
The complaints are dismissed.
DECISION
1In this matter the complainants alleged that the respondent Ernest Ladas who is an officer and owner of the Flaming Steer Restaurant, made requests of each of them which they refused and which they believe would not have been made of male employees. In short, they allege that they were sexually harassed and claim that such harassment contravenes the provisions of the Ontario Human Rights Code (hereinafter referred to as "the Code").
2There are separate complaints brought by each of the complainants against the same respondents and for convenience the parties agreed that all the evidence, in effect, be applied to both complaints.
I
3Since this is the first case of this kind to be heard under the Code, it may be useful at the outset to discuss the general principles applicable to situations of this sort, particularly since the issues were very extensively and very ably argued by the parties.
4The relevant provisions of the Code are as follows:
4(1) No person shall,
(a) refuse to refer or recruit any person for employment;
(b) dismiss or refuse to employ or to continue to employ any person;
(c) refuse to train, promote or transfer an employee;
(d) subject an employee to probation or apprenticeship or enlarge a period of probation or apprenticeship;
(e) establish or maintain any employment classification or category that by its description or operation excludes any person from employment or continued employment;
(f) maintain separate lines of progression for advancement in employment or separate seniority lists where the maintenance will adversely affect any employee; or
(g) discriminate against any employee with regard to any term or condition of employment,
because of race, creed, colour, age, sex, marital status, nationality, ancestry, or place of origin of such person or employee.
5In my view the purpose of the Code is to establish uniform working conditions for employees and to remove those matters enumerated in Section 4 as relevant considerations in the workplace. Consideration of matters such as "race, creed, colour, age, sex, marital status, nationality or place of origin" strikes at what the preamble of the Code refers to [as] "the foundation of freedom, justice and peace", and infringes on the "freedom and equality in dignity and rights" which this province and this society revere as commonly held values and have enshrined those in the Code. Thus, the Code prohibits these values from becoming negative factors in the employment relationship.
6Subject to the exception provided in Section 4(6), discrimination based on sex is prohibited by the Code. Thus, the paying of a female person less than a male person for the same job is prohibited, or dismissing an employee on the basis of sex is also prohibited. But what about sexual harassment? Clearly a person who is disadvantaged because of her sex is being discriminated against in her employment when employer conduct denies her financial rewards because of her sex, or exacts some form of sexual compliance to improve or maintain her existing benefits1. The evil to be remedied is the utilization of economic power or authority so as to restrict a woman's guaranteed and equal access to the work-place, and all of its benefits, free from extraneous pressures having to do with the mere fact that she is a woman. Where a woman's equal access is denied or when terms and conditions differ when compared to male employees, the woman is being discriminated against.
7The forms of prohibited conduct that, in my view, are discriminatory run the gamut from overt gender-based activity, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender-based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment. There is no reason why the law, which reaches into the workplace so as to protect the work environment from physical or chemical pollution or extremes of temperature, ought not to protect employees as well from negative, psychological and mental effects where adverse and gender-directed conduct emanating from a management hierarchy may reasonably be construed to be a condition of employment.
8The prohibition of such conduct is not without its dangers. One must be cautious that the law not inhibit normal social contact between management and employees or normal discussion between management and employees. It is not abnormal, nor should it be prohibited, activity for a supervisor to become socially involved with an employee. An invitation to dinner is not an invitation to a complaint. The danger or the evil that is to be avoided is coerced or compelled social contact where the employee's refusal to participate may result in a loss of employment benefits. Such coercion or compulsion may be overt or subtle but if any feature of employment becomes reasonably dependent on reciprocating a social relationship proffered by a member of management, then the overture becomes a condition of employment and may be considered to be discriminatory.
9Again, the Code ought not to be seen or perceived as inhibiting free speech. If sex cannot be discussed between supervisor and employee neither can other values such as race, colour or creed, which are contained in the Code, be discussed. Thus, differences of opinion by an employee where sexual matters are discussed may not involve a violation of the Code; it is only when the language or words may be reasonably construed to form a condition of employment that the Code provides a remedy. Thus, the frequent and persistent taunting by a supervisor of an employee because of his or her colour is discriminatory activity under the Code and, similarly, the frequent and persistent taunting of an employee by a supervisor because of his or her sex is discriminatory activity under the Code.
10However, persistent and frequent conduct is not a condition for an adverse finding under the Code because a single incident of an employee being denied equality of employment because of sex is also prohibited activity.
11The next issue to be decided is the extent of liability under the Code. If a foreman or supervisor discriminates because of sex will the company be liable? The law is quite clear that companies are liable where members of management, no matter what their rank, engage in other forms of discriminatory activity. Thus, companies have been held liable where lower ranking members of the management team engage in anti-union activity or discriminate against employees because of race or colour, and the same general law that imposes liability in those cases ought to apply where members of the management team discriminate because of sex. Thus, I would have no hesitation in finding the corporate respondent liable for a violation of the Code if one of its officers engaged in prohibited conduct and, indeed, the same liability would attach if the violator had a lower rank on the management team.
12Perhaps the most difficult task facing this Board is whether similar fact evidence is admissible for the purpose of finding a violation of the Code. In these matters evidence was submitted on behalf of the complainants to demonstrate that the respondent, Ernest Ladas, engaged in similar conduct with other female persons in the employ of the respondent. The classic statement of the law governing similar fact evidence is contained in Makin v. Atty-Gen. for N.S.W., [1894] A.C. 57, 63 L.J.P.C. 41 in the judgment of Lord Herschell who stated:
It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.
13The danger in admitting similar fact evidence is that the accused person may be convicted not on the basis of evidence relating to the offence, with which he or she is charged, but on the basis of evidence of other acts which show the accused has a disposition which makes it likely that the accused committed the offence for which he or she is being tried.
14The general rule relating to similar fact evidence is applicable to both criminal and civil matters and, thus, in my view it is applicable to matters falling under the Code. MacDonald et al. v. Canada Kelp Co. Ltd. et al. (1973) 1973 CanLII 1087 (BC CA), 39 D.L.R. (3d) 617, [1973] 5 W.W.R. 689 (B.C. Ct. of App.).
15But the difficulty is in the application of the rule. The rule is easier to state than to apply particularly in sexual cases. As a general rule sexual situations do not occur in public. One is often left with only the testimony of the accuser and the accused. How is one to determine the guilt or innocence based on a quick assessment of the proponents in the witness box? It is suggested that the adversary system through the process of examination and cross-examination will lead to the truth. But quite often that is not the case. There is an artificiality to the process which often tends to hide the truth rather than reveal it. The proponents make brief appearances in the witness box. Very often they are examined and cross-examined by lawyers of varying skills. Some witnesses are better than others; often the most consummate liar is the better witness while the truthful person is hesitant and creates a poor impression. In those circumstances it is equally unjust to deny a remedy to an injured person as to grant a remedy against an innocent person.
16In the context of sexual cases very close thought should be given to admitting similar acts. Apart from evidence tending to show particular peculiarities, careful consideration should be given to the statement of Lord Cross of Chelsea in Boardman v. Director of Public Prosecutions, [1975] A.C. 421, [1974] 3 All E.R. 887 where discussing similar fact evidence he said,
In such circumstances the first question which arises is obviously whether his accusers may not have put their heads together to concoct false evidence and if there is any real chance of this having occurred the similar fact evidence must be excluded. In Reg. v. Kilbourne [1973] A.C. 729, it was only allowed to be given by boys of a different group from the boy an alleged offence against whom was being considered. But even if collaboration is out of the way it remains possible that the charge made by the complainant is false and that it is simply a coincidence that others should be making or should have made independently allegations of a similar character against the accused. The likelihood of such a coincidence obviously becomes less and less the more people there are who make similar allegations and the more striking are the similarities in the various stories. In the end, as I have said, it is a question of degree.
17I now turn to apply these principles to the facts of the two complaints.
II
18The first complaint to be dealt with is that of Ms. Cherie Bell. Ms. Bell was employed by the Flaming Steer restaurant on weekends from the beginning of September in 1977 to mid-October. On November 1, 1977 Ms. Bell filed a complaint with the Ontario Human Rights Commission alleging sexual harassment by Ernest Ladas on October 8 and October 9, 1977 and also October 15 and 16, 1977. These complaints were later amplified in a letter dated September 10, 1979 from counsel for the Commission to counsel for the respondents. There are essentially three incidents about which Ms. Bell complains. The first involves an incident when Ms. Bell went to pick up her first pay cheque, the second is concerned with comments that Ernest Ladas made to her when she came to work tired and the third incident is concerned with a request by a customer for a drink.
19Basically, the evidence and the arguments turned on the question of credibility. Both counsel for the Commission and counsel for the respondents were in general agreement as to the applicable law. The issue of credibility was vigorously contested by the parties. As I have indicated cases involving sex rarely have a host of corroborative witnesses. The two main protagonists in this case are Ms. Bell and Mr. E. Ladas. Ms. Bell testified that Mr. Ladas made comments to her which were sexually harassing and that her refusal to comply with his suggestions brought about her termination. Mr. Ladas denied these allegations and maintained that he had at all material times acted with complete propriety.
20In this matter the issues of credibility are very difficult; however, after considering all the evidence I found Ms. Bell's evidence to be less than completely candid.
21The first incursion into her credibility concerns her testimony about the impact upon her of the alleged sexual harassment. Ms. Bell alleged in her complaint and testified that on or about October 18, 1977 when she called to find her hours of work for the following week that she was terminated. Her call followed the alleged incidents of sexual harassment. The willingness to work is of no moment because persons in need of employment may be prepared to endure certain humiliations because of their financial need. Thus, Ms. Bell's indication that she was prepared to work is only important because of what she says occurred after her discharge.
22Ms. Bell testified that the impact of Mr. Ladas' statements were such that she was unable to work for a period of seven months after her termination. She suggests that the trauma of having worked for Ernest Ladas was such that she was so deeply and psychologically affected that she was unable to work for such a considerable period of time. I note that Ms. Bell did not seek medical assistance despite the severity of her alleged trauma.
23In my view, her evidence in this regard is inconsistent. On the one hand she was prepared to work at the Flaming Steer restaurant which was the source of her sexual harassment and traumatic state, while on the other hand she was unable to seek employment elsewhere for seven months. Even counsel for the Commission, in his final argument, was hard put to explain Ms. Bell's failure to seek alternative employment for such a lengthy period or to seek medical assistance even from her family doctor which would have corroborated such a claim.
24But that evidence, apart from its inherent weakness, has graver implications. First, it suggests a tendency on her part to exaggerate and, second, it suggests an improper motive by Ms. Bell in bringing this complaint. I am satisfied, after observing Ms. Bell in the witness box and considering her demeanour as well as analyzing the evidence that, in all probability, she would not have been incapacitated, for such a lengthy period of time, by the remarks she attributes to Mr. Ernest Ladas and that she exaggerated her evidence in order to assist her case.
25It is also apparent that if Ms. Bell's lack of employment for the seven-month period resulted from sexual harassment she might be compensated accordingly by bringing this complaint. Thus, the exaggeration of her claim had its financial reward and, by so exaggerating her claim, one is left with the impression that Ms. Bell's motive in bringing the claim was, in part, improperly motivated. When this evidence is weighed with other evidence it casts considerable doubt on Ms. Bell's version of events.
26Further, on November 1, 1977, after she had been discharged, Ms. Bell filed a complaint with the Ontario Human Rights Commission. She discussed the complaints with a representative of the Commission, Caroline Bell (no relation) who testified at the hearing. Caroline Bell indicated that the complainant, Ms. Cherie Bell, was quite specific about her complaint. Indeed, the complainant specified that the incidents of sexual harassment by Ernest Ladas occurred on October 8 and 9, 1977 and October 15 and 16, 1977, approximately two and three weeks prior to the filing of the complaint. It now appears that the incidents could not have happened on those dates because the evidence demonstrates that Mr. Ernest Ladas and the complainant did not work together on those dates.
27It is understandable for someone to make a mistake about dates, and such errors, in some contexts, might be overlooked. However, the complaint was filed only two weeks after the alleged incidents and two weeks after Ms. Bell was fired. In the light of her own testimony as to the serious impact that the incidents had upon her, Ms. Bell might be expected to have been more precise in her recollection. She was, as Caroline Bell testified, quite specific when she filed the complaints, yet she was wrong and that raises a suggestion that she might not be accurate about the remaining testimony.
28In fairness, one of the incidents is alleged to have occurred on October 16, 1977, when Ernest Ladas was still at the restaurant and just before he had changed shifts with Tim Ladas, but it is clear that the other incidents did not occur on the dates specified. At least one of the alleged incidents, the pay cheque incident, occurred early in September and ought to have been more memorable because it allegedly occurred on the day that Ms. Cherie Bell received her first pay cheque. But Ms. Cherie Bell's testimony about that incident is also lacking.
29Caroline Bell testified that when she interviewed Cherie Bell, prior to the drafting of the complaint, Cherie Bell told her that she had been propositioned by Ernest Ladas when she had gone to the restaurant to get her first pay cheque. She told Caroline Bell that she had her baby with her at the time and that this prompted a conversation that resulted in a proposition. According to Caroline Bell she was told by Cherie Bell that she had gone to the restaurant with her baby and Ernest Ladas asked her whether it was her baby. He then went on to ask her if she was married and she replied that she was not. There was further conversation about whether Ms. Bell was on the pill and then Ms. Cherie Bell asserted that Ernest Ladas propositioned her.
30When the complainant, Ms. Cherie Bell, testified, she gave a somewhat different version concerning the pay cheque incident. Ms. Cherie Bell testified that she had gone to the restaurant with her girlfriend to pick up her pay cheque and Ernest Ladas had asked her what she was doing and she replied that she was going out with her girlfriend to the local hotel. She further testified that she and Ernest Ladas had some conversation about what she drank and she told him rye and ginger. Ernest Ladas apparently replied that drinking rye stimulated him sexually. Some further conversation ensued about the pill and then Ernest Ladas is alleged to have propositioned her.
31It is apparent that Ms. Cherie Bell's version of the incident given to this inquiry differed from her version of the incident given to Ms. Caroline Bell in 1977, just some weeks after the incident is alleged to have occurred. When Caroline Bell was cross-examined about the incident she indicated that Cherie Bell had also told her about going to the hotel with her girlfriend but, after reviewing the total evidence, I conclude that there was only one occasion when Ms. Cherie Bell went to pick up her pay cheque and that her version of the incident, as recited to Ms. Caroline Bell, differs from and is not consistent with her evidence given at the hearing. At the very least, if only Ms. Caroline Bell's testimony is considered, it appears that Ms. Cherie Bell was not consistent in describing the incident to her. Again, one might attribute the inconsistency to the lapse of time between the actual event and the hearing, but when this inconsistency is viewed in the light of the other evidence it tends to affect the credibility of the witness.
32The two other incidents relied upon by the complainant arise from comments that were allegedly made to her by sexual propositions. I do not propose to elaborate on these incidents at any length but merely recite them for the purpose of the record. Needless to say they are also denied by Ernest Ladas.
33The first of these incidents arose when the complainant came into work and told Ernest Ladas that she was tired. A brief conversation ensued which Ms. Cherie Bell says concluded by Ernest Ladas telling her that the reason she was tired was because she "screwed too much". Ms. Bell then went to her place in the restaurant to do her work. Again, the date of this incident appears to be incorrect and Ms. Bell interpreted the remark as a proposition.
34The second incident occurred when Ms. Bell received an order for a drink, referred to as a Sloe Screw. She went to the bar and Ernest Ladas asked her what she wanted. When she told him he said he would give her a slow screw and a fast screw if she wanted. Ms. Bell interpreted this remark as a proposition.
35The respondents deny that these conversations occurred and stated that Ms. Bell was terminated because of her substandard performance, a suspicion that she was stealing tips from other waitresses, as well as taking money and not ringing up the proceeds of sales into the cash register, and not charging customers whom she knew the proper amount for what they had ordered.
36With respect to her performance Ms. Bell admitted that she could have been a better waitress, but attributes the lack of performance on her part to being new and to being nervous which resulted from the sexual harassment. She admits to getting orders mixed up and dropping things. However, it is also apparent that, according to her own testimony, fifty percent of the time worked was not with Ernest Ladas and from other testimony less than fifty percent of the time worked was not with Ernest Ladas, so that there was no reason for her to have been nervous when Ernest Ladas was not present.
37In addition, there was testimony from other employees that Ms. Bell was not a willing co-worker and that they were suspicious about their tips. One of the employees testifies that she had customarily received tips from a particular group of customers and that these tips diminished when Ms. Bell was employed and returned to their former level after Ms. Bell left.
38There is one disturbing piece of evidence concerning a $10.00 bill that Ms. Bell found under a seat. At the time she saw the $10.00 on the floor there was a customer seated in the booth. Ms. Bell concluded that the $10.00 could not have fallen from the pocket or wallet of the particular customer, and when the customer left she took the $10.00 bill for herself. In those circumstances it would appear that it might have been more appropriate to have asked the customer whether he had lost any money and the failure to ask the customer reflects on Ms. Bell's honesty.
39In any event, Mr. Tim Ladas, the brother of Ernest Ladas and an officer of the company who also works in the restaurant, was highly suspicious of Ms. Bell's performance and was aware of complaints about her from other employees. On the last night that she worked Ms. Bell worked with Tim Ladas. He became very suspicious about her work and particularly her recording of the proper amount for drinks Ms. Bell was serving to some customers that she knew. He watched her carefully and concluded that she was not charging them fully for the drinks she was serving them and, based on her total performance, he decided to discharge her. He recorded the drinks she was serving and found that the bill did not correspond with the number or amount of drinks served. According to Ms. Cherie Bell, Mr. Tim Ladas spoke to her about the situation that night and she denied it. She also admitted that Mr. Ladas was watching her carefully.
40Mr. Tim Ladas decided to discharge Ms. Bell and informed his brother, Ernest, who would be on shift when she called in to tell her that she was discharged and to contact Tim Ladas if she wanted to discuss it. This is not a case where the employer need establish just cause or that the reason for the employee's discharge was because she acted improperly. There is no allegation of sexual impropriety against Mr. Tim Ladas and there is nothing in the evidence that connects his decision to terminate Ms. Bell with the alleged sexual advances of his brother, Ernest Ladas. In short, I am unable to conclude, and there is no evidence, that Tim Ladas fired Ms. Bell because she refused the propositions of his brother.
41I am further satisfied that Tim Ladas fired Ms. Bell because he had reasonable and ample grounds to suspect that her work performance was substandard and that her general conduct as a waitress was inappropriate. I further determine that Mr. Tim Ladas was not motivated to discharge Ms. Bell for any reason that might contravene the provisions of the Code. There is simply no connection between Tim Ladas' decision and any matter that might constitute a violation of the Code and Ms. Bell's complaint cannot succeed on that ground — she was not discharged because she refused to become sexually involved with Ernest Ladas.
42The only remaining aspect of this case concerns the allegations of sexual harassment during Ms. Bell's employment and the similar fact evidence called to support those allegations. In one instance the witness Miss Carol Bassett, who testified, gave evidence that was completely hearsay and I am not prepared to accept that evidence.
43In the case of Ms. Valerie Redpath, another former employee, who testified, I have some difficulty with the totality of her evidence. She indicated that she had originally been employed in 1972 when advances had been made, but the company's records and the evidence suggest that she was not employed at that time. Also, Ms. Redpath does not recall working in early 1977, although the records indicate she was briefly employed at that time. And finally, there is some confusion concerning what had occurred when Ms. Redpath left her employment. She apparently indicated at the time that her child was ill but in her testimony she stated that she was pregnant and lost a child and was hospitalized, and attributes this difficulty to being pushed in her work in the restaurant. All in all, after considering Ms. Redpath's testimony, the possible motive for testifying, and her demeanour, I find Ms. Redpath's evidence to be unreliable and I am not prepared to find that it assists the complainant in any way.
44The only other evidence that might be considered as similar fact evidence is the evidence of Anna Korczak, who is also a complainant, and after considering the totality of her evidence, I am not satisfied that it should be admitted or given weight in the circumstances of this case. I am concerned that its prejudicial value outweighs its probative value. Based on the general admonitions against receiving similar fact evidence, I am hesitant to accept Ms. Korczak's evidence.
45Alternatively, I find that the acts of sexual harassment described by Ms. Korczak differ from those described by Ms. Bell and do not indicate a pattern. The features, if any, are different with each complainant and do not suggest a particular system or a particular peculiarity. In Boardman v D.P.P., supra, it was suggested that the evidence of sexual overtures made to the two boys had an unusual feature in that "the grown man attempted to get an adolescent boy to take the male part to the master's passive part in acts of buggery". Lord Morris of Borth-y-Gest referred to the evidence as having a "striking similarity" and "such an underlying unity that probative force could fairly be yielded". In this case I find nothing unusual in the similar fact evidence tendered that Mr. Ladas slapped her rear on different occasions whereas Ms. Bell does not suggest there was any physical contact of that sort. Ms. Korczak also testified that Mr. Ladas invited her out for a couple of drinks and suggested that they go to a hotel room, whereas the approaches made to Ms. Bell, if they can be interpreted that way, made no mention of going for drinks or going to a hotel room. Indeed, the alleged approaches seem very different in nature and tone and, if anything, demonstrate a lack of consistency of approach. On that basis I am not prepared to find that the alleged sexual overtures made to the two complainants were so unusual, or bore such a striking similarity, that the evidence of each of the complainants should be treated as similar fact evidence having some probative value in the other's complaint.
46Ernest Ladas also testified on his own behalf. I do not propose to outline his evidence except to note that he denied each of the allegations put forth by Ms. Bell. While there are some flaws in his testimony, I am not prepared to find, on balance, his testimony to be so unreliable when compared to Ms. Bell's that I would be prepared to conclude that he made the alleged statements and that he propositioned Ms. Bell or, alternatively, that the reasonable implication of his remarks in the context of all the evidence was such that sex was a condition of employment.
47Moreover, there is an important part of Mr. Ladas' evidence which is corroborated by an independent witness, Steve Stavrou. At the time of the alleged incidents, Mr. Stavrou was approximately sixteen years old and worked as a part-time dishwasher at the restaurant. He has no stake in the outcome of these proceedings and his evidence is thus more independent than that of Ms. Bell or Mr. Ernest Ladas. He gave his evidence in a very straightforward manner and without any semblance of guile and, in my view, his evidence weighs heavily in the balance.
48Mr. Stavrou witnessed the "sloe screw" incident and completely corroborated the evidence of Ernest Ladas that the remarks attributed to him by Ms. Bell were not made. Also, Mr. Stavrou corroborated the evidence of Tim Ladas that he was suspicious of Ms. Bell's conduct and work performance and buttressed Tim Ladas' position in deciding to discharge Ms. Bell. And, finally, Mr. Stavrou witnessed the situation when Ms. Bell picked up the $10.00 from the floor and his version of the incident does not enhance Ms. Bell's credibility.
49On balance, where there is a contradiction in testimony, I prefer the evidence of Ernest Ladas and I further find that Ms. Bell's evidence, when viewed alone or in the context of the other evidence, is not sufficiently reliable to found a violation of the Code as alleged by her.
50Accordingly, the complaint of Ms. Cherie Bell is dismissed.
III
51The second complaint to be dealt with is that of Ms. Anna Korczak, who was terminated in mid-October of 1977 after having worked at the Flaming Steer restaurant for approximately one month. Ms. Korczak did not file her complaint until March of 1978 and did so only after she was approached by Ms. Caroline Bell, who was investigating the complaint of Ms. Cherie Bell.
52I place no stock in the fact that Ms. Korczak filed her complaint some considerable time after she was terminated as I infer from the evidence that she may not have been fully aware of her rights.
53I do not propose to discuss the principles applicable in this type of situation because they have been discussed in the case of Ms. Cherie Bell, which was heard at the same time. Also, the evidence tendered as similar fact evidence has been reviewed in the Bell case and I have no reason to take a different view of that evidence in this matter.
54This case also turns on the credibility of the complainant, Ms. Anna Korczak, and the respondent, Mr. Ernest Ladas. Ms. Korczak's complaints are made against Mr. Ernest Ladas and it was Mr. Ernest Ladas who discharged her. Mr. Tim Ladas did not play any relevant part in the employment relationship or in the termination.
55Essentially Ms. Korczak's evidence is that Mr. Ernest Ladas slapped her rear end on more than one occasion and that this physical contact was unsolicited and undesired. She also claims he made inquiries about her personal life and invited her out to drink with him and to have sexual relations with him.
56Ms. Korczak's evidence was basically consistent. There was some evidence that she was motivated to bring this complaint because her financial position was impaired as a result of being terminated and consequently she lost her car.
57Mr. Ernest Ladas denied all of the allegations and claimed that Ms. Korczak was not a good employee, that she was rough with customers, that she was not neat in appearance and that she did not perform her work at a reasonable standard. He also testified that he felt that she smoked marijuana while at work and that he caught her stealing and it was for all these reasons that he terminated her employment.
58To some extent some of Mr. Ladas' evidence as to Ms. Korczak's work performance is corroborated by other employees, particularly Steve Stavrou, who was the dishwasher.
59This particular matter has given me anxious consideration. There are both strengths and weaknesses in the evidence of the complainant and the respondent, Ernest Ladas. In my view it would be better to decide this case on the merits but having weighed the pros and cons and the theories of the case put forward in the very able arguments of counsel for the Commission and counsel for the respondent, I am unable to conclude that the position of one side should prevail over the position of the other side. Thus, in the result and after considering the merits of each position, I find that this case falls to be decided on the basis of which side has the onus of proof.
60Since, in my view, it is the complainant who must establish that on the balance of probabilities the respondent has acted in a manner that is in violation of the Code, the complaint must be dismissed. I am unable to conclude that the evidence led by the complainant goes that far and, accordingly, the complaint of Ms. Anna Korczak is dismissed.
NOTE
Footnotes
- There is no intention to deal with the implications of bisexual conduct in the circumstances of this case. It is intended to deal with harassment of female employees by a male in authority and the principles equally apply to the harassment of a male employee by a female in authority as well as homosexual exploitation.
